Labour Law for Non-Lawyers

1. Labour Law for Non-Lawyers

2. Introduction • Simplified court structure • Constitutional Court • Labour Appeal Court • Labour Court • CCMA / Bargaining Council

3. Introduction • Unfair Dismissal Structure • Depends on the type of dismissal: • CCMA or Bargaining Council for conciliation; • then to CCMA or Bargaining Council for arbitration; • except, in certain circumstances, go from conciliation at the CCMA or Bargaining Council to the Labour Court for adjudication

4. The Constitution • General characteristics of constitutionality: • constitutional supremacy; • entrenched Bill of Rights; • extensive powers of interpretation and enforcement granted to the courts; • human rights friendly approach

5. The Constitution • The Bill of Rights • contains several relevant provisions including: • protection against discrimination; • protection against forced labour and servitude; • right to pursue an occupation; • right to freedom of association; • protection of children against exploitative labour practices.

6. The Constitution • Section 23 of the Constitution: • everyone has the right to fair labour practices; • every worker has the right to form and join a trade union, participate in union activities and strike; • every trade union, employer’s organisation and employer has the right to engage in collective bargaining

7. The Constitution • The Impact of the Constitution on Labour Law • constitutional labour rights has a substantial impact on the development of labour law • some are of the view that it is inappropriate to develop labour law through the Constitution • the Constitutional Court has disagreed with this view

8. The Constitution • The Impact of the Bill of Rights • parties who may not be able to rely on the LRA may approach the Constitutional Court directly

9. The Basic Conditions of Employment Act • Overview • governs the minimum standards of employment • covers all employees except SASS, NIA and unpaid volunteers working for charitable organisations • purpose is to advance economic development and social justice • give effect to and regulate right to fair labour practices • anything done in terms of the BCEA takes precedence over any agreement

10. The Basic Conditions of Employment Act • Regulation of Working Time • Exclusions from this provision: • senior managerial employees; • sales reps who regulate their own hours; • employees who work less than 24 hours per month; • employees who earn in excess of R115 572.00;

11. The Basic Conditions of Employment Act • Regulation of Working Time contd • An employer must regulate the working time of employees: • in accordance with health and safety provisions; • with due regard to code of good practice; • with due regard to their family responsibilities • for more detail, refer to page 7 of handbook

12. The Basic Conditions of Employment Act • Ordinary Hours of Work • cannot work more than 45 hours per week • or 9 hours in a day if the employee works 5 days a week • or 8 hours if the employee works more than 5 days in a week • extension of ordinary hours up to 15 minutes per day • but not more than 60 minutes per week • for more detail, refer to page 8 of the handbook

13. The Basic Conditions of Employment Act • Overtime • does not apply to employees whose earnings exceed R115 572.00 • employee may only work overtime where there is an agreement in place • agreement cannot provide for more than 12 consecutive hours per day • not more than 10 hours per week

14. The Basic Conditions of Employment Act • Overtime contd • payment is one and half times the employee’s wage • paid time off to be granted within 1 month of entitlement • for more detail, refer to page 8 of the handbook

15. The Basic Conditions of Employment Act • Meal Intervals • no application to those earning above R115 572.00 • employees who work continuously for more than 5 hours entitled to meal interval of 1 continuous hour • during meal interval, only required to perform those duties that can’t be left unattended • employee who works during meal interval entitled to be remunerated • can agree in writing to reduce meal interval to 30 minutes • dispense with meal interval if less than 6 hours per day

16. The Basic Conditions of Employment Act • Daily and weekly rest period • daily rest period of at least 12 consecutive hours between conclusion and commencement • can be reduced to 10 hours if the employee works on premises and gets 3 hour meal interval • weekly rest period of at least 36 consecutive hours including Sunday, unless otherwise agreed • can agree to reducing weekly rest period, provided rest period in the following week is extended accordingly • can agree on 60 consecutive hours every 2 weeks

17. The Basic Conditions of Employment Act • Pay for work on Sundays • entitled to double the wage if don’t normally work • if normally work, then entitled to one and a half times • paid time off to be granted within 1 month • for more detail, see page 9 of the handbook

18. The Basic Conditions of Employment Act • Night Work • no application if earning more than R115 572.00 • between 18h00 and 06h00 • must be agreement between the parties • compensation of employee by payment of an allowance – shift allowance / reduction of working hours • transportation must be available between residence and workplace

19. The Basic Conditions of Employment Act • Night Work contd • entitled to request medical examination in certain circumstances • employers to inform employees of health and safety hazards and of entitlement to medical exam • confidentiality of results of medical exam • employer to transfer employee to day work if employee’s health is suffering because of night work • for more detail, refer to page 9 and 10 of the handbook

20. The Basic Conditions of Employment Act • Public Holidays • no application if earning more than R115 572.00 • employee not required to work unless agreed • if public holiday falls from Monday to Friday, pay employee ordinary wage • if employee works, employer to pay double • for more detail, refer to page 10 of the handbook

21. The Basic Conditions of Employment Act • Leave • not applicable to those who work less than 24 hours per month • provisions don’t apply to leave granted in excess of minimum • applies to all regardless of remuneration • different types of leave • employer always required to grant unpaid leave (must be reasonable)

22. The Basic Conditions of Employment Act • Annual Leave • leave cycle is 12 months immediately following commencement of employment or completion of previous cycle • employee to be granted at least: • 21 consecutive days; • 1 day for every 17 days worked; • 1 hour for every 17 hours worked. • example of where days / hours apply where employee has not accumulated leave because has not worked there long enough / in the case of a part time domestic worker

23. The Basic Conditions of Employment Act • Annual Leave contd • annual leave to be granted not later than 6 months after the end of the annual leave cycle • not required or permitted to take annual leave during any period of notice • employer to grant additional day of leave if public holiday falls on day employee would ordinarily work (if domestic worker works only on Wednesdays and public holidays falls on that day, employer must pay) • not required or permitted to work during annual leave period (if employee works, which can often happen, employer to give leave back)

24. The Basic Conditions of Employment Act • Annual leave contd • employer may not pay employee instead of granting paid leave except on termination of employment • all employment contracts should contain “non-accumulation” clause • Important Case Law to note: • Jardine v Tongaat-Hulett Sugar (accumulation of leave) • Jooste v Kohler Packaging (accumulation of leave)

25. The Basic Conditions of Employment Law • Sick Leave • sick leave cycle is the period of 36 months’ employment immediately following commencement of employment or completion of the previous sick leave cycle • employee entitled to the amount of days he would normally work during a period of 6 weeks • but, during the first 6 months, employee entitled to 1 day for every 26 days worked • if hasn’t yet accumulated leave, reasonable employer would allow unpaid leave

26. The Basic Conditions of Employment Act • Sick Leave contd • employer required to pay the wage the employee would ordinarily have received • not required to pay an employee if away from work for more than 2 consecutive days or on more than 2 occasions during an 8 week period AND the employee doesn’t produce a medical certificate • medical certificate to state that employee was unable to work for the duration of the absence due to illness or injury

27. The Basic Conditions of Employment Act • Sick Leave contd • medical certificate to be issued and signed by a medical practitioner or person certified to diagnose patients and registered with a professional council • Traditional Health Practitioner’s Bill: • employers must accept certificates from traditional healers provided they are registered with the Interim Council for Health Practitioners • where not practical to obtain medical certificate, employer can’t withhold payment unless it assists employee in obtaining certificate

28. The Basic Conditions of Employment Act • Maternity Leave • entitled to at least 4 consecutive months • commencement of leave 4 weeks before expected date of birth unless otherwise agreed • cannot work for 6 weeks after birth unless certified fit to do so • entitled to 6 weeks if miscarriage during 3rd trimester or stillborn child • employee to notify employer in writing of date when she intends commencing leave and date of return

29. The Basic Conditions of Employment Act • Maternity leave contd • employer not required to pay employee for maternity leave unless policy exists; • policy may provide for payment of 60% of normal salary • employee entitled to claim remaining 40% from the Unemployment Insurance Fund • thus, total cannot amount to more than 100% of normal salary

30. The Basic Conditions of Employment Act • Protection of employees before and after child birth • pregnant employee or employee nursing her child cannot be required or permitted to perform work that is hazardous to health • if required to perform night work or work which poses danger to health of child, employer must offer suitable alternative employment • code of good practice

31. The Basic Conditions of Employment Act • Family responsibility leave • only applies to those employed for more than 4 months who work more than 4 days per week • entitled to 3 days’ paid leave in the event that: • employee’s child is born; • employee’s child is sick; • employee’s spouse, life partner, parent, grandparent, child, grandchild or sibling dies; • if employer requires proof of event, employee to provide it before being paid • does not accrue

32. The Basic Conditions of Employment Act • Particulars of employment and remuneration • applies to those who work more than 24 hours per month • employer to provide employee with certain information (page 14 of handbook) in writing • if information changes, employee to be provided with copy of revised document • employers not permitted unilaterally to change terms and conditions – must consult • statement of employees rights in prescribed form to be displayed at workplace where it can be read by all

33. The Basic Conditions of Employment Act • Particulars of employment and remuneration contd • written particulars to be kept by employer for 3 years post termination • payment of remuneration by way of cheque, cash or direct deposit • employer obliged to give certain information when paying an employee • employer may not deduct from the employee’s remuneration unless agreed or where permitted by law, court order or arbitration award

34. The Basic Conditions of Employment Act • Particulars of employment and remuneration contd • deduction for loss or damage suffered by employer if: • employee’s fault and during course of employment; • employer gives employee opportunity to show why deductions should not be made; • total amount of debt does not exceed actual amount of damage; • total deductions do not exceed ¼ of remuneration • debt to be specified by employer in separate agreement

35. The Basic Conditions of Employment Act • Termination of employment • applies only to those who work more than 24 hours per month • contract may terminated on notice of not less than: • 1 week if employed for 6 months or less; • 2 weeks if employed for between 6 months and 1 year; • 4 weeks if employed for 1 year or more (collective agreement can reduce this to 2 weeks) or if a domestic or farm worker employed for more than 6 months. • notice to be given in writing, unless illiterate, then must be explained

36. The Basic Conditions of Employment Act • Termination of employment contd • employer cannot give notice of termination during any period of leave • instead of giving notice, employer can pay employee the remuneration he would have received had he worked • upon termination, employer to pay for any annual leave accrued and not taken and for any paid time off not taken

37. The Basic Conditions of Employment Act • Termination of employment contd • where dismissal is for operational requirements, employer to pay severance pay of at least 1 week for each completed year of service • if employee refuses to accept reasonable alternative offer, employer does not have to pay him severance

38. The Basic Conditions of Employment Act • Termination of employment contd • employee entitled to certificate of service on termination stating: • employer’s full name and address; • date of commencement; • date of termination; • job title and description of work performed; • remuneration of employee on termination; • reason for termination, if requested

39. The Basic Conditions of Employment Act • Important cases to note: • Purefresh Foods v Dayal • Freshmark v CCMA and others

40. The Basic Conditions of Employment Act • General • person who is provided to a client by a TES is the employee of the TES • TES is a labour broker, eg.“Kelly” – provides employees to the client • so that client doesn’t have to deal with employees • if TES does not comply with the BCEA or any sectoral determination, the TES and the client are jointly and severally liable • important case to note: • LAD Brokers v Mandla

41. The Labour Relations Act • Overview • primary objects of the LRA: • give effect to and regulate constitutional labour rights • give effect to obligations as a member of the ILO • provide framework within which trade unions, employer’s organisations and employers can bargain collectively • promote collective bargaining, employee participation in decision making and resolution of labour disputes

42. The Labour Relations Act • Overview contd • applies to all employees except NIA, SASS and SANDF • contains various codes of good practice (not binding but should be taken into account): • code of good practice on dismissal; • code of good practice on dismissals for operational requirements; • code of good practice on sexual harassment; • code of good practice on picketing; • code of good practice on key aspects of HIV / AIDS in employment

43. The Labour Relations Act • Employees v Independent Contractors • Overview • independent contractors are not employees • do not enjoy protection of labour legislation • also excluded from employee benefit schemes • employers may attempt to subvert labour legislation by construing an employment relationship as an independent contracting one • courts are aware of this and look at true nature of the relationship

44. The Labour Relations Act • Employees v Independent Contractors contd • The law • distinction both in common law and the statutes between the two (e.g. Income Tax Act) • common law – decided case law • variety of tests established to determine whether employee or independent contractor: • control test; • intuitive test; • dominant impression test – most common

45. The Labour Relations Act • Employees v Independent Contractors contd • The law contd • question is whether an individual has placed his productive capacity at employer’s disposal • courts will look at obligations contained in the written contract to determine this • employment relationship: effort and personal service • independent contractor: focus on a particular job to be done

46. The Labour Relations Act • Employees v Independent Contractors contd • The law contd • employee is defined as: • any person, excluding an independent contractor, who works for another person or the state and who receives or is entitled to receive any remuneration; and • any person who in any manner assists in carrying or conducting the business of the employer

47. The Labour Relations Act • Employees v Independent Contractors contd • The law contd • section 200A of the LRA contains presumptions as to who is an employee. The following indicates an employment relationship: • right of control over the manner in which the person carries out duties; • right of control over hours of work; • person forms part of the organisation;

48. The Labour Relations Act • Employees v Independent Contractors contd • The law contd • presumptions contd • person works average of 40 hours per month in last 3 months • economic dependence • provision of tools of trade; and • exclusive service

49. The Labour Relations Act • Employees v Independent Contractors contd • The law contd • form of contract does not affect presumptions • thus, onus resides on employer to prove that no employment relationship exists • presumptions do not apply to those who earn over R115 572.00 per annum • in those circumstances, onus rests on person to prove employment relationship exists

50. The Labour Relations Act • Employees v Independent Contractors contd • The law contd • further factors • person is under supervision; • a reporting line exists; • provision of office equipment; • duration of relationship; • compliance with the BCEA; • business no longer viable upon termination.